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dkennedy, Criminal Defense Lawyer

Category: Criminal Law

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Experience: J.D. degree, 15 years practice

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my x husband stole property from the military in 2004 and was

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my x husband stole property from the military in 2004 and was convicted, serving time in a military prison. he manuvered it so my name was on the stuff, I was investigated, adn cleared. we divorced and i was awarded custody of our 2 children. we are now beginning a court fight because i want to move out of state with my new husband, and our new child, for his job. x husband has threatened to go to authorities and tell them that i was involved in the crime (he signed a statement at the time saying I didnt know anything about it, that was notorized adn accepted by the gov't). if he does this can i be investigated again adn possibly go to prison?

He is trying to bully you. He will never be able to get you in trouble for theft of that property. But, you need to be aware of the Illnois laws regarding moving away with a child. It is common these days to have multiple boyfriends or spouses and want to move with them and take your children, but the courts have been asked to forbid this over and over again by fathers who no longer have contact with their children. In reply, laws have been passed and court cases decided which restrict parents from just moving the child away without permission.

Here is an excerpt from an article about the subject.

The court has authority to decide whether the custodial parent may move the child out of state, or otherwise out of visiting range of the other parent.

The court will make this decision based on what appears best for the child under all the circumstances of the case.

Factors the court will consider include:

Likelihood that the move will enhance quality of life for the child, as well as for the custodial parent;

The motive of the custodial parent.

The motive of the non-custodial parent in resisting the move.

The current visitation schedule.

Whether realistic and reasonable visitation schedule can be reached if the move is allowed.

Section 5/609(a).

Cases:

Krivi (1996) 670 NE2d 1162 (The trial judge erred in allowing the wife to move the children, aged two and three, some 850 miles away from their father, 14 months before the divorce was granted. The wife failed to prove that the move was in the best interests of the children. The wife's new job was comparable to her present job. Also, the children could receive adequate care, housing, training, and opportunity in their home town. The two daughters in the custody of the wife had a close relationship with their half-brother, in the custody of the husband. In addition, the husband had been diligently exercising his visitation rights. The parties had been married for seven years.)

Smith (1996) 665 NE2d 1209 (The mother was not allowed to relocate to New Jersey. The mother had remarried, and the new husband lived in New Jersey. There were two girls, age 11 and 6. Two psychiatrists both concluded that the move to New Jersey would be detrimental to the girls. The girls had been in a split custody situation, spending about half their time with each parent. Meanwhile, the relations between the parents had deteriorated after the divorce to the point of complete acrimony. This was apparently a source of great stress to the girls. The father had told the 11-year-old that he could not afford a house because of the child support payments. This in particular was a source of stress to that child. The court concluded that sole custody would be better for the girls. And, because the father had behaved inappropriately in sharing his adult concerns with his 11-year-old daughter, and deliberately seeking to weaken her bonds with her mother, he was found to be the less-desirable parent. Sole custody was awarded to the mother, but the relocation was denied. As a result, it appears that the mother, living in Illinois, was left married to a man who lives in New Jersey. The court noted that, at the time of this second marriage, the mother had not intended to move to New Jersey. So the situation, while difficult for the mother and her new husband, was one they had entered with their eyes open.)

Elliott (1996) 665 NE2d 883 (Although the wife would receive a large increase in salary, to $850 a week, the court did not permit her to move to Ohio with the two girls. The court decided that the negative impact the move would have on the girls would outweigh the indirect benefit that the girls would gain from the wife's new position. In addition, the move would severely limit the husband's visitation rights and prevent a reasonable visitation schedule from being implemented. The husband's job as a dock worker required him to be on call at any time, so planning long-distance visits would be difficult. Also, if, as expected, the girls would make new friends in Ohio, they would not want to leave on the weekends to visit their father. The husband had regularly come during his visitation times, which included two weeks in the summer, two days every other week, and one night during the off-week. The husband coached one of the girls' softball and basketball teams. At the time of the request, the girls were aged 10 and 8. The judge interviewed the 10-year-old, and she said she did not want to move. She said that the wife's new fiancee, who lived in Ohio, had made fun of the girls' father and punished the girl for being noisy in the morning. The girls were doing well in school in Illinois. They were also close with all four grandparents, all of whom lived in the area. Weighing all these factors, the court decided it was in the girls' best interest to stay in the area.)

Johnson (1996) 660 NE2d 1370 (The court did not allow the mother to move with the 9-year-old daughter from Illinois to Texas. The mother had remarried, and the new husband was transferred to Texas two years after the remarriage. The mother had one child, ten months old, with the new husband. The husband was a Texan, and he had been in St. Louis for a time he always had known would be limited. Prior to this trial and appeal, the new husband had already moved back to Texas. The mother had been living and working full time in Illinois. The mother had always worked full time, apparently. The home and school in Illinois would be at least as good as those in Texas. In this case, the court required the child to remain in Illinois because of the extraordinarily close relationship the child had with the father. The father had been the primary care giver for 2 1/2 years, from age 6 months to age 3. Since then, the daughter would spend 40% to 50% of her time with the father, under a joint custody arrangement. (The mother had primary residential custody.) The daughter would also spend significant time with the father's parents. The court concluded that any improvement in the child's life from the move to Texas would be indirect, deriving from the fact that the mother and new husband would be able to be together. On the other hand, the decline in the quality of the child's life from the move would be clear: the loss of the frequent and continuing contact with the father. In addition, most of the daughter's relatives lived in the local area. The mother had argued that she and the new husband might decide to divorce if the court did not permit the removal of the daughter to Texas. Nonetheless, the court decided that the child would be better off staying in Illinois.)

I know he is bullying and threatening, still frightening! Just want some reassurance with all the 'what if's. I was investigated by NCIS and DCIS and tehre was no evidence to convict me. If he did go to civillian authorities would I be investigated again? He gave a written confession that was notorized adn signed by him and the head investigator from each of the above entities in which he stated that I had no knowledge that any of the items were stolen and he was solely responsible even though he had my name on it. Woudl he even be taken seriously once I produced that?

I realize teh real battle is in leaving the state.

I was awarded sole physical, legal, and medical custody and he was awarded visitation.

My x husband does not now get teh children for all of his visitation times, is late when he does get them, and sometimes just never shows up. He does not go to school functions or extra curricular activities. He tells teh children they dont have to listen to school or daycare teachers, doesnt make them do homework when he has them, and tells them things about me that arent always true, as well as showing them emails and text messages we have sent each other.

He lied about his income when we initially has the child support order set up and has sent me emails stating he will not pay child support on a 2nd job he has since gotten because "I dont deserve it".

The school district we want to move to has higher test scores than our current one, and I will be able to stay at home with the children instead of working full time as I do now.

We can prove that my new husband tried for 5 months to find a job within our state.

We also will offer to pay for all transportation costs to fly children to visit their father (over Christmas break, spring break, and 6 weeks in teh summer). We plan to allow them to spend time wtih their father when we all visit family, as well as to allow him to visit the children if he would ever come to where we want to be in our new home.

Any ideas on what the 'odds' would be in being awarded the right to move out of state?

It sounds like you have a very good case for moving out of the state. I would not want to give you "odds" however. A lot depends on how good your argument is in court, and frankly, it depends on the opinion of the judge.

It also seems to me (with the limited info I have) that the statute of limitations has expired in the theft case. You are, I am sure, worrying about that for no reason. It is a closed case. Don't give him the satisfaction of spending time worrying. That's all he has to bully you with, so he is running with it. If they cleared you years ago, and he got convicted, what is the likelihood that they will believe him now?

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